F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

AUG 10 2001

PATRICK FISHER
Clerk

JAMES H. TRACY,
Petitioner-Appellant,
v.
MIKE ADDISON, Warden,

No. 00-6452
(D.C. No. 00-CV-1665-M)
(W.D. Okla)

Respondent-Appellee.
ORDER AND JUDGMENT

Before EBEL , PORFILIO, and KELLY , Circuit Judges.

Petitioner appeals the district courts order dismissing without prejudice his
ex post facto challenge to the cessation of his CAP credits under the Oklahoma
Prison Overcrowding Act, Okla. Stat. Tit. 57, 570-576.

The district court

held that because the claim challenged only the execution of petitioners sentence,
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

he should have brought it under 28 U.S.C. 2241, rather than under 28 U.S.C.
2254. See, e.g. , McIntosh v. United States Parole Commn

, 115 F.3d 809, 811

(10th Cir. 1997). Petitioner argues on appeal that his claim for CAP credits was
properly brought under 2254 and, therefore, that the district court erred in
determining that it should have been filed under 2241 and in dismissing it.

Before petitioner can proceed on appeal, he must obtain a certificate of

appealability (COA) from this court. 28 U.S.C. 2253(c)(1)(A);

Montez v.

McKinna , 208 F.3d 862, 869 (10th Cir. 2000) (holding that 2253(c)(1)(A)
requires a state prisoner to obtain a COA regardless of whether he is seeking
relief under 2254 or under 2241). Because the district court denied
petitioners habeas petition on procedural grounds, it did not reach his underlying
constitutional claims. Under these circumstances, petitioner is not entitled to a
COA unless he can show, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.

Slack v. McDaniel , 529 U.S. 473, 484 (2000).

In the district court, the magistrate judge determined that petitioners claim
for CAP credits should have been brought under 2241, and, therefore,
The district court also determined that three other claims were properly
brought under 2254, but that they were untimely. Petitioner does not challenge
the district courts dismissal of these three claims on appeal.

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recommended that the claim be dismissed without prejudice. In a lengthy

footnote, the magistrate judge noted that this claim was likely untimely, too,
based on facts contained in the record of a related civil rights action brought by
petitioner with regard to the CAP credits.
Petitioner filed objections to the magistrate judges report in which he
acceded to the dismissal of his three 2254 claims, but requested that the court
construe his CAP credit claim as one under 2241 and decide it on the merits.
He argued that equitable tolling would apply to make this claim timely. Several
days later, petitioner submitted amended objections, in which he argued that this
court had granted habeas relief under 2254 in cases involving similar types of
credits and, therefore, that the district court could properly decide his claim under
2254. After receiving petitioners initial objections, but before receiving his
amended ones, the district court entered an order adopting the report and
recommendation of the magistrate judge and dismissing petitioners CAP credit
claim without prejudice. This appeal followed.
In ruling on petitioners request for COA, we would normally consider
whether reasonable jurists would find it debatable whether the district court
correctly determined that petitioners claim should have been brought under
2241, or whether the district court correctly refused petitioners request to
construe the claim as one under 2241 rather than require him to refile the
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claim. 3 We need not reach these issues, however, because the records before us
establish that COA is not warranted in any event as petitioners CAP credit claim
is untimely.
As did the magistrate judge, we take judicial notice of the record in the
related civil rights action,

Tracy v. Keating , Dist. Ct. No. 00-CV-1324, which is

now pending before us on appeal in No. 01-6057. The records before us establish
that Governor Keating declared an overcrowding emergency in May 1989, prior to
petitioners incarceration. Beginning in July 1994, when petitioner was moved to
a security level at which he could obtain the resulting CAP credits, petitioner
began accruing the credits regularly. Between November 1997 and November
1998, petitioner accrued the credits every sixty days. In October 1998, the Board
of Corrections changed the way it calculated the legal capacity of the system.
(This is the action that petitioner contends violates the Ex Post Facto Clause.)

We note that by requiring petitioner to refile a 2241 petition, rather than

simply construing that part of his 2254 petition as one filed under 2241, the
district court potentially disadvantaged petitioner. The Supreme Court has held
that the pendency of a federal habeas action will not toll the statute of limitations
under 28 U.S.C. 2244(d)(2).
Duncan v. Walker , 121 S. Ct. 2120, 2129 (2001).
Therefore, requiring a petitioner who has erroneously asserted a 2241 claim in a
2254 proceeding to actually refile the claim under 2241 may put the petitioner
in the position of having to refile a claim that has become untimely during the
pendency of the action. Assuming there are no counterveiling successiveness
problems, the better practice would to be to construe the misnamed 2254 claim
as one under 2241, at least where the petitioner has specifically requested that
the court do so.
3

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As a result, the Board certified to the governor that there was no longer an
overcrowding emergency. By order of November 23, 1998, Governor Keating
declared that the overcrowding emergency was over, and petitioner has not
received any CAP credits since November 1998.
Pursuant to 28 U.S.C. 2244(d)(1)(D), petitioner had one year from the
date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence to file his federal habeas
petition. Petitioner could have discovered as early as January 1999, sixty days
after he last received CAP credits, that he was no longer receiving the credits.
Petitioner did not file the current habeas action until September 11, 2000, well
over a year after he could have discovered that his CAP credits had ceased.
Therefore, regardless of whether his habeas petition is treated as one under
2241 or one under 2254, it is untimely. Accordingly, petitioner cannot make
the showing necessary to obtain a certificate of appealability with regard to his
CAP credit claim.

Petitioner claimed for the first time in his objections to the magistrate
judges report that Governor Keating also violated his rights when he refused to
sign an order in July 2000 declaring an overcrowding state of emergency, despite
the Board of Corrections having certified that there was a new overcrowding
emergency. We will not consider this claim, because [i]ssues raised for the first
time in objections to the magistrate judge's recommendation are deemed waived,
Marshall v. Chater , 75 F.3d 1421, 1426 (10th Cir. 1996).

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Petitioners motion to proceed in forma pauperis is GRANTED, petitioners

motion for a certificate of appealability is DENIED, and this appeal is
DISMISSED.
Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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